It’s legal: cops seize cell phone, impersonate owner

In November 2009, police officers in the state of Washington seized an iPhone belonging to suspected drug dealer Daniel Lee. While the phone was in police custody, a man named Shawn Hinton sent a text message to the device, reading, "Hey whats up dogg can you call me i need to talk to you." Suspecting that Hinton was looking to buy drugs from Lee, Detective Kevin Sawyer replied to the message, posing as Lee. With a series of text messages, he arranged to meet Hinton in the parking lot of a local grocery store—where Hinton was arrested and charged with attempted possession of heroin.

Hinton wasn't Sawyer's only target. According to a court decision summing up the facts, "Sawyer spent about 5 or 10 minutes looking at some of the text messages on the iPhone; he also looked to see who had been calling. Many of the text messages that Lee's iPhone had received and stored were from individuals who were seeking drugs from Lee."

So Sawyer texted one of the individuals on the list and asked him if he "needed more." The individual, Jonathan Roden, replied, "Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I'm only payin' one eighty for it, instead of two Ts for two hundred, that way." (The court helpfully explained that a "ball" is "a drug weight equivalent to approximately 3.5 grams.")

But can cops legally do this with seized cell phones? When their cases went to trial, Hinton and Roden both argued that Sawyer had violated their privacy rights by intercepting, without a warrant, private communications intended for Lee.

But in a pair of decisions, one of which was recently covered by Forbes, a Washington state appeals court disagreed. If the decisions, penned by Judge Joel Penoyar and supported by one of his colleagues, are upheld on appeal, they could have far-reaching implications for cell phone privacy.

"No longer private or deserving of constitutional protection"

"There is no long history and tradition of strict legislative protection of a text message sent to, displayed, and received from its intended destination, another person's iPhone," Penoyar wrote in his decision. He pointed to a 1990 case in which the police seized a suspected drug dealer's pager as an example. The officers observed which phone numbers appeared on the pager, called those numbers back, and arranged fake drug purchases with the people on the other end of the line.

A federal appeals court held that the pager owner's Fourth Amendment rights against unreasonable search and seizure were not violated because the pager is "nothing more than a contemporary receptacle for telephone numbers," akin to an address book. The court also held that someone who sends his phone number to a pager has no reasonable expectation of privacy because he can't be sure that the pager will be in the hands of its owner.

Judge Penoyar said that the same reasoning applies to text messages sent to an iPhone. While text messages may be legally protected in transit, he argued that they lose privacy protections once they have been delivered to a target device in the hands of the police. He claimed that the same rule applied to letters and e-mail. (Police would still need to seize or search a phone or computer legally, and phones are much easier for cops to seize than computers, which generally require a warrant.)

"On his own iPhone, on his own computer, or in the process of electronic transit, Hinton's communications are shielded by our constitutions," he wrote, referring to both the state and federal constitutions. "But after their arrival, Hinton's text messages on Lee's iPhone were no longer private or deserving of constitutional protection." Penoyar rejected Roden's privacy arguments on similar grounds.

Unsettled law

Mobile phones exist in a constitutional grey area. The law has well-developed doctrines protecting the privacy of our desktop computers, landline telephones, and filing cabinets. But modern cell phones perform all of these functions, and more. If the police are free to rummage through any cell phone that falls into their hands, every arrest would automatically give the police access to a treasure trove of private data that they would otherwise need a warrant, based on probable cause, to obtain.

The Washington State decision is not unprecedented. Last year, the California Supreme Court ruled that no warrant was required for the police to peruse a cell phone that was confiscated after its owner tried to sell ecstasy to an undercover police officer. In that case, the police obtained a text message that seemed to confirm the government's case against the suspect. Two justices of the California Supreme Court dissented from the ruling.

One judge dissented from the Washington State rulings as well. "Sawyer engaged in a continuing search when he first searched the contacts list on Daniel Lee's iPhone to find Hinton's phone number," wrote Judge Marywave Van Deren in her dissent. Sawyer "used Lee's iPhone to send and receive messages from Hinton. Under these circumstances, I would hold that Sawyer was required to obtain a search warrant."

In a slightly different context, the Obama administration has also held that the contents of cell phones enjoy constitutional protection. Earlier this year, the Department of Justice filed a brief in a Maryland case arguing that Baltimore police had violated a man's constitutional rights—including his Fourth Amendment right against unreasonable search and seizure—when they seized his phone and deleted videos he had taken of the officers' conduct.

"Hey whats up dogg can you call me i need to talk to you." Suspecting that Hinton was looking to buy drugs from Lee, Detective Kevin Sawyer replied to the message, posing as Lee. With a series of text messages, he arranged to meet Hinton in the parking lot of a local grocery store—where Hinton was arrested and charged with attempted possession of heroin.

Please tell me there was some kind of evidence there, because in that story there was no evidence of that crime.

Quote:

So Sawyer texted one of the individuals on the list and asked him if he "needed more." The individual, Jonathan Roden, replied, "Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I'm only payin' one eighty for it, instead of two Ts for two hundred, that way." (The court helpfully explained that a "ball" is "a drug weight equivalent to approximately 3.5 grams.")

This seems pretty reasonable to me. You still have a privacy interest in your own phone, but I don't see that you have a privacy interest in someone else's phone. In the same way that you wouldn't have a privacy interest if you called your dealer and left a message on his answering machine.

Judge Penoyar said that the same reasoning applies to text messages sent to an iPhone. While text messages may be legally protected in transit, he argued that they lose privacy protections once they have been delivered to a target device in the hands of the police. He claimed that the same rule applied to letters and e-mail.

By using that logic, who says police can't rummage through your mail box just randomly. I mean once it is delivered (mail), I guess we shouldn't expect any privacy for any piece of mail once it is delivered.

Anyway isn't it entrapment if the officer induced someone to commit a crime that he or she may not have committed?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

How are text messages NOT papers in the modern era? They serve the same sort of function that a hastily scribbled note handed to a messenger would have in 1786, and those were protected back then.

I understand that the phone had been seized during the initial arrest. I in fact really don't have any issue with most of what happened in this case. What I'm not comfortable with is the concept that a message in it's entirety is the equivalent of a phone number which is more akin to the address on the outside of an envilope. If electronic messages don't enjoy the same protections as written documents just because of their medium, then we functionally have no privacy protections in the electronic world.

Possibly entrapment, given that Hinton's request was entirely prompted by Sawyer's text; the whole thing reeks of a "fishing expedition". It would be an entirely different story if Hinton had asked for more drugs of his own volition.

So Sawyer texted one of the individuals on the list and asked him if he "needed more." The individual, Jonathan Roden, replied, "Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I'm only payin' one eighty for it, instead of two Ts for two hundred, that way." (The court helpfully explained that a "ball" is "a drug weight equivalent to approximately 3.5 grams.")

Putting aside the privacy issue (which I don't think applies) and the 'unreasonable search' (which I think this DOES fall afoul of), I'm really curious how this instance here doesn't constitute entrapment? Of course, if the idiot had just said 'yes' instead of going into excruciating detail, he would have had a much better case, but the basic premise still applies.

As for the 'search' part of things, a search of a person while being arrested is ostensibly supposed to be for purposes of finding weapons to protect the safety of the officer, illicit substances or concrete physical evidence of a crime. The whole notion of being able to search a cell phone without warrant really is too much of a stretch. Seriously, what if I had a remote desktop app on the smart phone connected to my laptop or desktop at home? Would that give them access to those files legally? Where does one draw the line?

Of course, they could always just use a pin to lock their phone, simple, effective, but of course if you're dumb enough to be using/selling drugs these days, maybe that simple fix is beyond them.

Mail is a little different because postal mail is a government-regulated service. The Feds don't want people tampering with their system, so there are stricter laws covering it. Cell phones, on the other hand, despite being FTC-regulated, are just so darned convenient for police investigation that the courts have been willing to keep them in a constitutional grey area. And unfortunately, much like open field searches, police can commit tortious (non-constitutional, civil-based) crimes against you in the field of duty and use such evidence recovered regardless. You may have the right to sue them to recover damages, but good luck suing a police officer, you dirty criminal, with all that money you have.

The best way to fight back? Lock down your stuff, know your rights, and educate everyone else on the same. Change the culture before it results in civil unrest and violence.

Edit: To the entrapment claims, it's probably not. Entrapment doesn't equal encouragement. To entrap someone, a police officer has to convince someone to do something that they otherwise would not have done without the "peer pressure" of the officer. Asking if he wanted more might be enabling, but it's not pressuring.

So, looks like this guy should have had a lock code on there, and set the '3 failures and it auto-wipes' option. And called for his lawyer to talk to the carrier to have his phone shut off as stolen property.

IANAL, but is it technically stolen if it's taken from you by the police? I mean, you didn't give them the OKAY to take your cellphone, so I'd qualify it as stolen (they did it while you were there and at gunpoint, but so would a mugger).

Which brings up another point. If you plead the 5th and don't give out your passcode, and the phone wipes itself is that obstruction of justice? Now, I'd think it would be if you intentionally GAVE them a few wrong codes and they tried them just for that purpose. Sure there are some jurisdictions that will have the fancy backdoor iPhone crackers, but not all will for a while.

There are two companies that sell devices/software that will bypass any locks on an iPhone(of course, this was back in '98 when iOS only supported 4-digit locks anyhow).

As far as I know, there is still nothing to encrypt the data on your iPhone.

iPhones from 3GS on are encrypted by default, but as was previously mentioned, if you have a PIN password, the police have tools to break through it. at this point, if you use a full-on password, there's no known way to break in.

For the people who are beginning to rant about totalitarianism, militarization, and government overreach, please calm down. No one is saying the government can seize your phone without a warrant and do as they please. All this decision says is that if you have been legally arrested (which means either the officer saw something that gave him/her probable cause to arrest you or that sufficient evidence existed for a judge to issue a warrant) that you have no right of privacy in the possessions that are in police custody. This is not a terribly novel concept. There has never been a privacy interest in property that is in police custody.While I agree that there are concerns about entrapment and also about when the government has access to information (such as who I'm calling/texting). This decision doesn't go that far. If you're concerned about what to do about those sorts of potential problems, educate yourself on the facts, read the laws (not just what one site on the internet says about the laws), read court decisions, and contact your representatives (and Vote). Make sure that the people making the laws understand that you are not willing to give up your rights (make sure you understand what rights you are really entitled to) for a false sense of security.

Court of Appeals of Washington... need I remind: one of the MOST OVERTURNED COURTS IN THE UNITED STATES. No, I don't see this standing in a higher court (meaning the Supreme Court of the U.S.) in the slightest.

This is akin to someone going up to you, taking your phone and your face/voice from you, then going to meet the people in question in real life and tell them "You wanna do this, you wanna do that!" that is illegal, turning out to be a policeman and then trying to arrest them.

To play devils advocate; I really don't see how this is different than law enforcement posing as underage individuals online to catch pedophiles. They 'chat' back and forth which is nothing more than texting. Do you honestly expect 'privacy' when your text message reaches it's destination? Honestly, how many of you have shown someone else a text message sent to your phone from a different person? To think, or believe, that your message is 'private' once it leaves your phone is a fairly shortsighted way of thinking.

There are two companies that sell devices/software that will bypass any locks on an iPhone(of course, this was back in '98 when iOS only supported 4-digit locks anyhow).

As far as I know, there is still nothing to encrypt the data on your iPhone.

iPhones from 3GS on are encrypted by default, but as was previously mentioned, if you have a PIN password, the police have tools to break through it. at this point, if you use a full-on password, there's no known way to break in.

Unless you are on android Remember that one time they had to like force that guy to unlock it past the grid screen?

But if you store stuff on an SD card, that's vulnerable. Best to use encryption if you have it.

Anyway isn't it entrapment if the officer induced someone to commit a crime that he or she may not have committed?

Yes--I was wondering that, myself. People have to tread carefully on this topic...

I don't think its inducing them if their intent was to commit the crime anyway. The article doesn't go that far in depth and leaves a lot to the imagination. The messaging probably went like - "need more?" (which by its self is not inducing) - guy replies "Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I'm only payin' one eighty for it, instead of two Ts for two hundred, that way."

so it sounds like a person would have comitted the crime anyway had the phones owner done the same thing. If the guy had not been ready to commit the crime then a response from a normal non-criminal person would have been to ignore the "need more?" or say "what?" or maybe something similar.

Forget how they go about doing it, what's really sick is that America throws people in jail for allegedly attempting to buy a couple grams for personal use.

Of heroin? Really, you're seriously going to take that road with heroin? I've had no less than six people I know die from Heroin. Have you seen anyone addicted to the drug? Had property stolen, by them? That "personal use" is not so personal for the friends and families of those using this drug.

To play devils advocate; I really don't see how this is different than law enforcement posing as underage individuals online to catch pedophiles. They 'chat' back and forth which is nothing more than texting. Do you honestly expect 'privacy' when your text message reaches it's destination? Honestly, how many of you have shown someone else a text message sent to your phone from a different person? To think, or believe, that your message is 'private' once it leaves your phone is a fairly shortsighted way of thinking.

The difference is that they do not go out and approach the person in question themselves and instigate the encounters. They wait until the pedosexual/pedophile in question makes an advance towards the officer posing as a child and THEN go from there.

Using someone's phone to text everyone in their phone is akin to getting someone's address book out of their home and sending CP to all of them, then showing up on their doorstep and trying to arrest them.

Wouldn't stand up in a court of law, because the above is entrapment especially if the person in question didn't know what they were receiving.

It's getting to the point where I think that we have too many laws on the books to try to 'protect society' and not enough to protect people's personal right to put what they want into their own bodies, have sex with who they want (even if paid to do it), etc.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.